Ariana R. Levinson, Reconsidering the Electronic Communications Privacy Act as a Source of Employee Privacy from Electronic Monitoring
Comment by: Eileen Ridley
Workshop draft abstract:
Scholars generally recognize that new technology has outpaced the law’s ability to protect employees’ privacy from electronic monitoring by employers. And numerous scholars have commented on the inadequacy of the Electronic Communications Privacy Act (ECPA), the federal law designed to insure privacy of electronic communications, as interpreted by the courts, to protect employees’ privacy from newer forms of electronic monitoring, such as of e-mail. Yet, despite increasing calls from a broad range of entities for stronger privacy protections, passage of new legislation designed to adequately protect employees is, at best, not close at hand, and, at worst, unlikely.
This article, thus, takes a second look at the ECPA as a potential source of some comprehensive protection for employees from employer electronic monitoring. Several new decisions out of the Ninth Circuit, such as an appellate decision denying summary judgment to a company that contracted with an employer who read an employee’s text messages and a district court decision denying a motion to dismiss for monitoring of keystrokes to discover an employee’s personal e-mail password suggest that new employment trends, such as use of third-party networks, rather than employer networks could lead to greater protection under the act. They also suggest that increasing incidents of employers intentionally accessing clearly personal communications, sometimes those that would be otherwise attorney-client privileged, could lead to greater protection. Perhaps the reverse of the saying bad facts make bad law is also true.
Additionally, some of the bases upon which the ECPA has been held not to protect employee communications, such as the definition of interception and the exceptions for consent and for ordinary course of business have likely been differently interpreted by different courts. Some interpretations are more protective of employee privacy and more consistent with the intent of Congress to protect individual’s privacy from electronic monitoring.